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Petitioner: Kamran and another VS Respondent: The State and others
Court Name: Lahore High Court Judge(s): Muhammad Amjad Rafiq Title: Kamran and another vs The State and others Case No.:Criminal Appeals Nos. 38038, 30076 and Criminal Revision No. 30079 of
JUDGMENT
Reported As: PLD 2022 Lahore 645 Result: Appeal dismissed Judgment JUDGMENT MUHAMMAD AMJAD RAFIQ, J. Kamran of 33 years, a security guard at FG School Gujranwala Cantt, was indicted for rape with a six years' student Sarnia; the part was abetted by a co-employee Barkat Ali; both faced prosecution in case FIR No.229 dated 15.05.2017 under section 376, P.P.C., Police Station Cantt, Gujranwala; learned trial court vide judgment dated 15.04.2019, acquitted Barkat Ali (accused) of the charge under section 109, P.P.C., whereas, Kamran (appellant) was convicted and sentenced as under; "Imprisonment for life under section 376(3), P. P.C. with fine of Rs.25000/-, in default to undergo six months' S.I. In addition, Payment of compensation of Rs.100,000/- to the victim under section 544- A(1), Cr.P.C., and in default to further undergo six months' imprisonment. Benefit of section 382-B, Cr. P. C. was extended". Appeal by Kamran (appellant) against his conviction and sentence; Criminal Revision for enhancement of his sentence, whereas Criminal Appeal against acquittal of Barkat Ali have been taken up for decision by this single judgment. 2. Melly a little doll in sixth year of her blossom was quite happy to find her in a school for education; after about a month of admission, her image in an evil eye roasted the lust one day, turned a human into a Satan who grabbed the opportunity to catch her prey on 12.05.2017 at about 10.30 a.m. when she was in the washroom of FG School No. 5, Cantt Gujranwala; the sex monger put him into action, unchasten the little girl, modesty was intervened, which confounded her and she in a state of shock could not comprehend the situation except a resounding traumatic shriek which too was restricted by pressing her mouth, demon continued till she started bleeding. Crime was
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reported to the police with a delay of three days on 15.05.2017 by her father Syed Suleman Shah PW-1, Sobedar in Unit No.11-FF Army Cantt, Gujranwala, with the assertion that he dropped his daughter Mst. Samia student of Class One, at school on 12.05.2017 around 7.30 a.m. and during interval, at 10.30 a.m. Chowkidar Kamran (convict/appellant) and Barkat Ali (since acquitted) took her to the washroom where Khmran subjected her to rape. On her home back, she complained of bleeding and informed her mother about the demonian act, she was taken to C.M.H. Hospital; lady doctor informed them about subjected rape. 3. The investigation of this case was conducted by Amanat Ali Sub-Inspector (PW-9) who visited the place of occurrence, recorded statements of witnesses including the victim, prepared rough site plan (Ex.PL), sent the victim for medical examination through Humara Bashir 626/LC, who later handed over him two sealed parcels of envelops, two sealed phials, clothes of victim. On 16.05.2017 Faryad Hussain 27-MP handed over him two Cantt Passes (P.6 and P.7) and two mobile phones (P.8 and P.9). On 17.05.2017, he arrested accused Kamran and Barkat Ali, interrogated and produced them before the Area Magistrate for their physical remand, recovered clothes on their lead. On the same day Major Abdul Qadeer handed over to him the swabs of victim Sarnia, one blood sample, one urine sample, three vaginal swabs, three anal swabs and three small plastic phials; samples were sent to PFSA for analysis, later received the report. After completion of investigation, he submitted report under section 173, Cr.P.C., the accused were charge sheeted to which they pleaded not guilty, whereupon, the prosecution examined Syed Suleman Shah Complainant (PW- 1), Mst. Samia Bibi (victim) PW-2, Dr. Fareeha Akram Malik.(PW-3) for medical examination of victim, Dr. Ahmad Sikandar (PW-4) as witness to potency test of both the accused, Syeda Aisha Bibi (PW- 5) mother of the victim, Humaira Bashir 626/LC (PW-6) who had taken the victim for medical examination and then produced her clothes, etc. to the Investigating Officer, Abdul Qadeer Mazari (PW-7) who deposed about departmental inquiry and the medical examination of the victim; Amanat Ali SI (PW-9) investigating officer. On close of prosecution case the accused when examined under section 342 Cr.P.C., though did not deny the occurrence yet stated that it was committed by someone else and they being civilian were booked in this case in order to save the real culprits; however neither produced any defence nor opted to appear in the witness box as required by section 340(2), Cr.P.C., ultimately, the learned trial court announced the verdict. 4. The learned counsel for the accused/appellant argued that totally. a false case was set up against him; none had seen the occurrence; no test identification parade was held, there was inordinate delay in reporting the matter to the police; testimony of witnesses is inconsistent and contradicted each other and he being a civilian was made a scapegoat; Medical evidence and PFSA report negate the act of rape. 5. Conversely the learned Deputy Prosecutor General opposed the above submissions by contending that in a case like the instant one, the statement of the victim alone is sufficient to record conviction, whereas, here in this case the statement of the victim is corroborated by so many other factors including the medical evidence and that no one would put the modesty of his/her daughter at stake to level such a serious allegation and then would also allow substitution of real culprit, as has been urged by learned counsel for the accused/appellant; delay per se in reporting the matter is not fatal, prosecution case has been placed before the court in a natural flow as the facts developed; no manipulation or concoction has been attempted. He has placed reliance on "Atif Zareef and others v. The State" (PLD 2021 SC 550) and "Irian Ali. Sher v. The State" (PLD 2020 SC 295). Learned counsel for the complainant relied upon the argument of learned DPG; no serious contest was made for enhancement of sentence or conviction of acquitted co-accused. 6. Proponents were heard at length; evidence was read, perused and examined along with the relevant record with able assistance of learned counsel for the parties.
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7. It has been observed, rather it is. an admitted position that Mst. Samia Bibi (PW-2) is aged six years and the learned trial court applied "Rationality Test", prior to commencing her examination- in-chief, by putting certain questions to her and then concluded that she was competent enough to get her statement recorded and thereafter, her statement was recorded, which is reproduced here in verbatim "Stated that I study in FG School No.5 Cantt, Gujranwala. On 12.05.2017, I went to washroom after taking-pass from my teacher where the accused Kamran and Barkat were sitting outside the washroom. The accused Kamran came into the washroom whereas the accused Barkat was standing outside the washroom. The accused Kamran removed his clothes as well as mine and committed wrong with me . The accused Kamran alias (sic) closed my mouth with his hand which also caused injury on my cheek. Thereafter, bleeding started and accused Kamran washed himself, me and the floor also. Thereafter, I went to classroom. After the school time, my father came to pick me. When I made the urine call at home, there was bleeding in it. I told about the bleeding to my mother and my mother told to father. My father and mother took me to the lady doctor at hospital." It is evident that Mst. Samia Bibi (PW-2) has made statement with innocent precision' and sequence by explaining as to when, where, how and what had happened with her. Allied information has brought on the record through cross-examination by the defence, wherein, the victim not only stood firm to her statement made in examination-in-chief, rather with confidence she further explained the situation and circumstances at the time of occurrence and even the events ensued. The victim was aged 6 years, but she exhibited noticeable maturity by stating that though father had picked her from the school on 12.05.2017 but she did not tell anything to him, rather she went home and laid all such information to her mother, which is quite a natural and acceptable phenomenon. Her further statement that she never visited the said school after the alleged occurrence, is yet another factor which goes a long way to establish that something terribly had gone wrong to her, whereafter, as an ordinary course the parents would never have wanted to yet again throw their kid, especially the female, to such an atmosphere where she could be further exposed to nasty questions or situations. Cross-examination by the defence could not shatter the testimony of the victim on material aspects, and she categorically denied the suggestions about nominating the accused on the asking of her father and also concoction of story. 8. Syeda Aisha Bibi (PW-5) mother of the victim, though is not the witness of the crime but she toed the line of Mst. Sarnia (victim) about commission of rape with her. This witness also satisfactorily explained the' delay in reporting the matter to the police by stating that:- "We kept on thinking for two/three days for what we should do. When we took our daughter to CMH, Gujranwala. The duty doctor said that it is police case, you should approach the police. Then we went to the police station for registration of the case. That on 15.05.2017, we along with Humaira Bashir/LC went to the Civil Hospital, Gujranwala. Lady doctor conducted the medical examination of my daughter namely Samia Bibi and said that rape has been committed with the victim." The parents of the victim after knowing about the occurrence definitely would be under mental stress and it is also quite normal that they would have given deep thought to all pros and cons, and ultimately when they got the victim medically checked up and the doctor also opined that the victim had been raped and that it was a police case, only then as a last resort they would have approached the police to lodge the complaint. As such, in the peculiar facts and circumstances of the case, the argument of learned counsel for the appellant with regard to delay in reporting the matter to the police, has no worth to be considered or draw an inference adverse to the prosecution case. Reliance can safely be placed on the case reported as "Irfan Ali Sher v. The State" (PLD 2020 Supreme Court 295). If the prosecution had any intention to book the appellant
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falsely, the medical record could have been maneuvered to bring the same in consonance with the date of occurrence or otherwise the date of. occurrence could have shuffled to correspond with the medical record, but here in this case apparently everything was kept in natural flow and no such attempt was made nor even it has been suggested by the defence either. 9. Furthermore, as discussed above, Syeda Aisha Bibi (PW-5) may not be a direct witness of the occurrence, but as shall be seen from her statement, the victim disclosed to her the entire details just on her reaching back at home, therefore, by all intents and purposes the statement of PW-5 has the relevance and can be considered as "res gestae" evidence per force of Article 19 of the Qanun-e-Shahadat Order, 1984. The Hon'ble Supreme Court of Pakistan in the case "Raja Khurram Ali Khan and 2 others v. Tayya ba Bibi and another" (PLD 2020 Supreme Court 146), with reference to "res gestae" referred a case from Canadian jurisdiction, the relevant portion of said paragraph is reproduced hereunder:- "The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions, such as admissions, dying declarations, declarations against interest and spontaneous declarations. While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with' new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions. "Because of the frequent difficulty of obtaining other evidence and because of the lack of reason to doubt many statements children make on sexual abuse to others, courts in the United States have moved toward relaxing the requirements of admissibility for such statements. This has been done in the context of the doctrine of spontaneous declarations. In McCormick on Evidence (3rd ed. 1984), at p. 859, n. 49, the authors refer to this development as the "tender years" exception to the general rule, and describe it as follows: A tendency is apparent in cases of sex offences against children of tender years to be less strict with regard to permissible time lapse and to the fact that the statement was in response to inquiry." "Similarly, Wharton's Criminal Evidence (13th ed. 1972), at p. 84, states that while "[t]he res gestae rule in sex crimes is the same as in other criminal actions", the ,rule "should be applied more liberally in the case of children". "These developments underline the need for increased flexibility in the interpretation of the hearsay rule to permit the admission in evidence of statements made by children to others about sexual abuse. In so far as they are tied to the exception to the hearsay rule of spontaneous declarations, however, they suffer from certain defects. There is no requirement that resort to the hearsay evidence be necessary. Even where the evidence of the child might easily be obtained without undue trauma, the Crown would be able to use hearsay evidence..." [Emphasis added] It is high time to follow above principle and allow "tender years" exception to general rule and create a room for admissibility of such evidence particularly in child abuse cases. Following above principles, testimony of PW-5 when examined, it transpired that she stood firm even during cross- examination and defence remained unsuccessful in eliciting something damaging to the prosecution or favourable to the defence; even otherwise, her statement being natural and realistic inspires full confidence and lends credible support to the statement made by the victim. 10. An objection was raised by the defence that deposing the fact of rape by the victim to her mother was not spontaneous because such statement was made after about three hours of the occurrence and there was sufficient time to concoct the story. Such contention is not worth appreciating because the moment she reached the home, she expressed the trauma to her
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mother which was still alive and dominating her thoughts. It has rightly been explained in Ratten v. R [1972] AC 378 and R v. Andrews [1987] 281 which had disapproved - Regina v. Bedingfield [1879] 14 Cox C.C. 341; Lord Ahktar summarized the position relating to the doctrine of res gestae; part of his observation is as under; (1) The primary question which the judge must ask himself is: can the possibility of concoction or distortion be disregarded? (2) To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. (3) In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus, the Judge must be satisfied that the event which provided the trigger mechanism for the statement was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading. As per evidence victim highlighted the events immediately to her mother when she observed bleeding while attending a urinating call, and that too apparently in a response to asking by her mother. It was by all purposes and intents a spontaneous declaration which rules out concoction or deliberation. 11. Medical evidence was also a part of res gestae evidence in this case under the principle of "Contemporaneous Physical Condition" which was first observed by mother of the victim and then by doctor whose statement is admissible with respect to injury and not for identifying accused. Some references in this respect are as under; This was applied in Tickle v Tickle (1968), where it was stated that, if what a patient says about her state of health to a doctor is admissible, then what a doctor says to his patient is also admissible. In both cases, the, res involved is the person's state of health. An example of the application of the principle in a criminal case is R v Conde (1867), in which evidence of a child's complaints of hunger to a neighbour was admissible to prove that the child was starving. The important thing to note here are that the statement must be contemporaneous and is only admissible to prove the condition, not its cause. In R v Gloster (1888), the accused was charged with having caused to death of a woman by an illegal operation, but her statements a few days after the operation as to who had caused the injuries from which she died were held to be inadmissible. Charles J Stated: - ....the statements must be confined to a contemporaneous symptoms and nothing in the nature of a narrative is admissible as to who caused them or how they were caused. The evidence of PW-5 for spontaneous declaration made to her by the victim about rape and injury is corroborated by the doctor PW-3, before whom the victim made such statement. This composition has a support to prosecution case with respect to injury which would legally and lawfully be read against the accused/appellant in this case so as to form an opinion about the truth of circumstance so described. 12. Medical evidence in this case coming through Dr. Fareeha Akram Malik (PW-3) is lending corroboration to the prosecution case, as according to this witness the victim was medically examined by her on 15.05.2017, she was accompanied by her mother and she had been brought by lady Constable Humaira Bashir 626/LC (PW-6). The history shown by her is the same as had been
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the case of the prosecution, clothes were found stained with semen and blood; following injuries she observed during the examination; 1. A partially healed abrasion % x nail marks on right cheek. 2. A partially healed abrasion brown scab on chin 1 cm x 1 cm. Local and specific examination 1. A laceration 1 x 1 cm reddish in colour on right labial fold. Private part swollen, red and tender. 2. The hymen was fresh torn. Admitted little finger. Redness and hyperemia seen around the margins of hymen. Vaginal swa bs were secured for DNA tracking and for all other allied information; such examination was pursuant to sections 164-A and 164-B of Cr.P.C. The injuries observed by the doctor stand corroborated with the prosecution version of the case. Though defence has alleged that doctor has wrongly observed that hymen was freshly torn; reason for objection, the counsel unfolded, that medical examination was conducted after three days of the occurrence and hymen in children is very deep and in such an haphazard or chance occurrence it is not believable that penal insertion could be possible up to vaginal canal attracting the very requirement of penetration; therefore, it could at the most be regarded as an attempt to commit rape; he stressed that showing inflated injuries with mala fide intention create doubt in prosecution story which entitles the accused to be acquitted. Two important preliminary questions for response to defence are outlined as under; X Whether after three days of examination, injury to hymen could be regarded as fresh? X To what extent the penal insertion attracts the requirement of penetration? To meet the first question, a forensic scientist Mr. C.K. Parikh in "Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology at page 5.37 mentions as follows; "Soon after the act, the torn margins are sharp and red, and bleed on touch. Even when examined after 3 to 4 days of offence, the edges of laceration are congested and swollen. The surrounding tissues are also swollen and tender". Further, H M V Cox "Medical Jurisprudence and toxicology" (Seventh Edition), by Dr. PC Dikshit, Professor and Head of Forensic Sciences, Maulana Azad Medical College, New Delhi printed by Lexis Nexis Butterworths, explains the situations in the Chapter of Sexual Offences at page 591 as under; In case of incomplete penetration, the only signs which may be seen are reddening and inflammation of vestibule within the labia or a small tear of the posterior fourchette. There may also be contusion of the hymen. The description of injuries explained by the doctor matched with observation highlighted above There may also stands perfectly for extent of penal insertion, it is highlighted in SIMPSON FORENSIC MEDICINE (Tenth Edition) by Bernard Knight that; "Sexual intercourse means nothing less than penile insertion, even if this is only just between the labia. Full penetration is not necessary and rupture of the hymen is irrelevant, but unless some degree of penile introduction can be proved, a charge of rape cannot be sustained and anything less is 'indecent assault'. An orgasm or ejaculation of semen is not relevant, only penetration". Above observations tally with the findings of doctor, therefore, full penetration is not necessary, a laceration 1 x 1 cm reddish in colour on right labial fold was sufficient to attract the offence of rape on the touch stone of penetration. The situation when rape is committed with a child has been well explained in H M V Cox "Medical Jurisprudence and toxicology" (Seventh Edition), by Dr. PC Dikshit, Professor and Head of Forensic Sciences, Maulana Azad Medical College, New Delhi printed by LexisNexis Butter worths, in the Chapter of Sexual Offences at page 591 as under; In the case of small children, the genital injuries found are either absolutely minimal or of such magnitude that one is unable to perform the examination without general unaesthetic. It must be
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remembered that it requires a great amount of force, exerted via penis, to effect full penetration into the small under-developed child, because of this many rapists of small children are satisfied to commit what is described as rape without full penetration. Further that; Bodily injuries, because of the lack of resistance by the child are usually absent in this type of case. In Madan Gopal Kakkad v. Naval Dubey and another case reported as 1992 SCR (2) 921, 1992 SCC (3) 204; for an alleged rape of a minor girl aged eight years, on examination of victim after five days, the medical officer found an abrasion on the medial side of labia majora and redness around labia minora with white discharge but the hymen was intact and was admitting the tip of the little finger and in view of absence of signs of full penetration, the medical officer opined that there was an attempt to rape. The Supreme Court finally observed as under; Under the basis of medical findings, it can be safely concluded that there was partial penetration within the labia majora or vulva or pudenda which in legal sense is sufficient to contribute to rape and convicted the accused for the offence of rape. Under the circumstance, it was a case of complete rape and not an attempted rape as alleged by the defence. Detailed medical examination in children is also a complex process; therefore, the methods which usually applied by the doctors and advice in this respect has been highlighted in SIMPSON FORENSIC MEDICINE (Tenth Edition) by Bernard Knight. The way in which the vaginal canal is examined depends upon the examiner and the equipment available. Some use a speculum or even handle of forceps, whilst other have glass globes, sometimes transilluminated, to stretch the hymen around for inspection of the edges. The technique varies with the patient as well as with the examiner, as the method for a sexually active adult is different from that of a small child, where only a limited internal examination may be justified. This limited examination is available in this case as required for formal proof. 13. Defence though keeping the…
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